02/23/2011

Some recent media attention has focused on attorneys and trial consultants who use Google and Facebook during voir dire to learn more about prospective jurors. The Wall Street Journal and Reuters recently ran pieces discussing the practice and both articles describe instances where trial consultants and attorneys discovered information online that influenced the use of their peremptory challenges. Beyond legitimate concerns about jurors’ privacy, how effective are online searches for juror information?

Both articles describe the kinds of information that might be found online, including the jurors’ favorite TV shows, their hobbies and activities, and their opinions as expressed on blogs, Tweets and Facebook posts. But only briefly addressed in the article is how much this information benefits the attorney and trial consultant. In other words, does the information obtained from online searches help in any way to predict a jurors’ eventual verdict?

When helping to select a jury, I am most interested in jurors’ attitudes on case-specific issues. These case-specific questions are consistently the best predictors of jurors’ eventual verdicts. So, for example, if the case involved a lawsuit against an automaker after a vehicle accident, I would encourage the attorney to focus our voir dire questions on learning more about jurors’ attitudes toward car companies and vehicle safety, jurors’ experiences with car accidents, their feelings about the quality and safety of their cars, and so on. I might also be interested in their attitudes toward big business in general.

Would online searches help answer these questions? If a juror happens to be blogging or Facebooking about their feelings on automobile safety or corporate scandals, online research would be incredibly valuable. Unfortunately, IMHO, most user-generated on-line content (OMG!) ranges from the mundane to the banal. The WSJ and Reuters articles both list examples of interesting information gleaned from online searches, but such needles in the haystack of Internet noise must be seen as the exception rather than the norm. Moreover, much of the information obtained from online searches, such as favorite shows and political orientation, could have been gained far more easily by simply asking the juror in court.

Having professed my skepticism of the practice, I can see where online searches might be useful in certain cases. For example, in cases where juror information is extremely limited and judges allow the attorneys to ask few, if any, additional questions of the prospective jurors, online searches might be useful as a final recourse. But in my experience, judges in such cases offer so little time for jury selection that there would probably be no opportunity to conduct thorough on-line research of all the prospective jurors.

01/12/2011

Attorneys and trial consultants are understandably interested in any information on how best to persuade jurors and obtain the best possible outcomes for their clients. While tips and hints for success are certainly helpful, just as valuable can be examples of what not to do. In their recent Hofstra Law Review article on the poor performance of two attorneys in a personal injury trial, Bruce Green and Karen Bergreen use their experience as jurors to generate a great list of “don’ts” for any litigator.

Both Green and Bergreen are experienced legal professionals. Green is a law professor and Bergreen is a former attorney. Both happened to served as jurors on the same trial in which a tenant of a New York City-owned apartment sought damages from the city. The plaintiff alleged that she was injured when part of her bathroom ceiling collapsed and struck her on the head.

The main purpose of Green and Bergreen’s article is to examine whether the government’s civil attorneys should bear the same exceptional duty to “pursue justice” as the government’s criminal prosecutors. But in exploring this question, Green and Bergreen describe a “keystone cops” courtroom experience that might have been amusing had the authors not been obligated to sit through it as jurors.

The problems began almost immediately during jury selection. According to the authors, “Plaintiff’s attorney took extensive breaks in between the utterance of each word he spoke. Every time a question was answered, he needed to consult with his myriad papers for a reason that remains a mystery to us” (p. 104). Things didn’t get any better when the city attorney asked her questions of the prospective jurors: “Instead of using questions to put forward her theory of the case, she asked if we could be fair. She asked what books and magazines we read … [W]e realized that the city’s lawyer asked general questions only because she knew nothing about the specifics of the case” (p. 104). As a result of the long and meandering voir dire, jurors soon realized that, “This was nothing like Perry Mason. It was more like Survivor, except in reverse. The idea was to get voted out of the room” (p. 105).

As this description illustrates so well, during jury selection:

• Don’t be unprepared with your questions so that you have to pause or consult your notes excessively.

• Don’t bother asking jurors if they can be fair. Ask almost anyone if they are a fair person, and they will say they are. But in fact, no one is perfectly fair. Everyone has biases and some of these biases can affect how jurors will view the evidence. Voir dire questions should be used to identify relevant biases in prospective jurors.

• Don’t ask what books and magazines people read. Unless the case involves publishing, copyrights or something else directly related to books and magazines, that question doesn’t get you very far. What is the attorney hoping to gain from the answer? The juror’s level of education? Possibly their political orientation or religious beliefs? Why not just ask those questions directly if they are somehow relevant? The best voir dire questions explore jurors’ experiences and attitudes toward case-specific issues. Most other questions yield relatively little useful information.

And unfortunately for the jury, things got no better during opening statements. “Plaintiff’s lawyer told us in as many words and pauses as possible that his client was hit and injured by the fallen ceiling in an apartment building owned by New York City. He added that the plaintiff’s quality of life had deteriorated. In response, the city’s lawyer opened with a reminder to keep an open mind and suggested as she had at the onset of voir dire that somehow the city was not responsible for maintenance of its own buildings because those buildings were overseen by the building’s tenant associations” (p. 106).

The key "don't" here is that in the opening statement, under no circumstances should you:

• Fail to tell your story! How was the plaintiff’s injury caused by the defendant’s negligence? What exactly did the defendant fail to do? There was apparently no mention of this in the plaintiff’s opening. Similarly, from the defense, jurors would expect to hear counter-arguments explaining the ceiling collapse. Was the plaintiff or a third party somehow responsible? And why would oversight by the tenant’s association mitigate the city’s liability as owner?

With no story to guide them, jurors were unprepared to hear from the witnesses and did not understand their relevance: “We [thought we] were ready for our first witness. At least we would hear what happened to the plaintiff. Instead, we heard from an employee of the city’s housing department” (p. 106). Even worse, this official was ill-prepared and unpersuasive: “He was very defensive. We learned that he was deposed some time ago and that he may have given answers that inadvertently helped Ms. Tenant … Perhaps the city’s lawyer reprimanded him for providing these answers, which he suddenly appeared to disavow. He said that he was an honorable man, several times. It became clear that he was incapable of giving a simple answer to a simple, yes-or-no question” (p. 107). The authors concluded their description of this witness by stating that, “we all non-verbally expressed to one another our confusion as to the purpose served by this testimony” (p. 107).

The plaintiff and her daughter testified soon thereafter, but were also unpersuasive. Their account of the collapse and the resulting injuries did not match the ambulance and hospital reports. The plaintiffs’ claims about a diminished quality of life also rang hollow. But the defense attorney seized on none of these opportunities during cross-examination and never asked the plaintiff or her daughter about the discrepancies in the reports.

When it came time for the city to present its defense, “instead of attacking [the plaintiff’s] credibility with better witnesses, [the defense attorney] kept focusing on whether the repairs were the responsibility of the tenant association or not. We did not care … As a jury, we were given no reason to believe that the tenant association was not an agent of the city” (p. 110).

Jurors also thought the city’s witnesses were disappointing: “The orthopedist who saw the plaintiff came off as a – forgive the term – ‘crazy, old guy’ … He had not practiced medicine in years and instead saw patients once a week as a paid expert for the city. He answered questions to the extent that he thought the city would be pleased” (pp. 110-11). Then, the defense called another expert, “another doctor engaged solely in the practice of representing the city. His interpretation of the MRIs contradicted that of the crazy, old guy several times” (p. 111).

These accounts offer several “don’ts” for witness testimony and the presentation of a case in general:

• Important witnesses should be well-prepared for their testimony. They should be told what to expect and how to answer questions directly and honestly. If there is damaging deposition testimony or conflicting reports, attorneys should ensure that witnesses can explain or justify those discrepancies.

• “Professional witnesses” need to be cautious about being too one-sided in their testimony. Jurors understand that paid witnesses are not disinterested parties and attorneys should be prepared to spend additional time explaining these experts’ credentials and having them defend their positions. Clearly, attorneys should also ensure that expert witnesses don’t contradict one another on the stand!

• How do your central themes relate to your story? Clearly the defense wanted to argue that the tenant association, not the city, was responsible for the building’s upkeep. While that could have been one of the defendant’s themes, it was clearly not a sufficient defense on its own, and should have been part of a larger defense story.

After two weeks in court, the jurors were informed that the parties had reached a settlement. The authors were disappointed by their experience in the jury box, but their article provides us with valuable examples of what not to do.

09/20/2010

Nancy Marder has published an interesting new article about allowing jurors to ask questions of witnesses during trial. Juror questions, along with other jury reforms such as note-taking and simplification of legal instructions, are intended to improve jurors’ comprehension of the evidence and the law, in the hopes that justice will be better served. While Marder argues in favor of expanding the use of juror questions, attorneys must be prepared for how questions from the jury might affect the case story the attorney is trying to tell.

Thirty states currently allow jurors to ask questions of witnesses during trial, although in most venues, allowing questions remains at the judge’s discretion. If the judge and attorneys decide to allow questions, jurors typically write their questions and submit them to the judge at the end of a witness’ testimony. The judge, in consultation with the attorneys, then determines which questions are appropriate, relevant, and legally permissible to ask. The judge then poses the questions to the witness.

(Interesting historical side note: Marder points out that allowing jurors to ask questions is not a new idea, but is rather a resuscitation of an old practice. In many venues across the country, nineteenth and early twentieth century jurors could ask questions at will in open court. These questions were known as “juror outbursts” and were consistently upheld on appeal. Only in the 1950s did courts begin to curb this practice.)

When preparing for a trial that includes juror questions, attorney must plan accordingly. Jurors’ questions can be unpredictable and raise the possibility of losing control over the message a witness is trying to convey. Including an experienced jury consultant in witness preparation can help identify any holes in the questioning and can give the attorney and the witness a better idea of what jurors may want to know more about. Mock trials and focus groups are also ideal opportunities to ask jurors what questions they would like to ask of the witnesses.

The ability of jurors to ask questions is also a reminder of the importance of telling jurors a clear and complete case story. Questions from the jury are most often the result of a witness’ failure to paint a complete picture during direct examination. Even if a judge decides that a juror’s question can not be asked, attorneys should still consider whether some sort of response can be included in the case. A recent incident suggests that jurors may react negatively if their questions are not answered.

08/30/2010

Several recent high-profile trials, including Rod Blagojevich’s corruption trial and the murder trial of Oakland police officer Johannes Mehserle, have featured video- and audio-taped evidence of the alleged crimes. In the case of former Illinois governor Blagojevich, an audio tape of a telephone conversation appears to record the then-governor discussing ways to profit financially from his power to name the successor to Barak Obama’s vacant Senate seat. In the case of Mehserle, cell phone video footage shows the officer draw his sidearm and shoot Oscar Grant, who was lying face-down on a train platform at the time of the shooting.

But in both of these cases, despite what would seem to be clear factual evidence of the defendants’ guilt, juries found the defendants guilty of only lesser crimes. Blagojevich was convicted on only one count of lying to federal agents, and the jury could not reach a unanimous verdict on the other twenty-three, more serious charges. Mehserle was convicted of involuntary manslaughter, but was found not guilty of second-degree murder and voluntary manslaughter.

These cases are stark reminders that “facts,” even facts as powerful as video and audio recordings, never speak for themselves. All factual evidence, even evidence as apparently clear as video footage, must be placed in context. In different contexts and to different jurors, these recordings can mean very different things.

In the Blagojevich trial, the phone calls could be seen as clear evidence of corruption to someone who sees a political quid pro quo as unethical. To someone else, who sees political horse-trading as a normal part of political life, the audio recording could seem to be rather unremarkable. In post-trial interviews, the Blagojevich jurors have also criticized the prosecution’s case, calling it “meandering” and disorganized. In other words, it would seem that the prosecution failed to tell a clear, persuasive story that put the audio-taped evidence in context.

In the Mehserle case, the defense claimed that the officer meant to draw his Taser to subdue an unruly and inebriated Grant during a melee in the early hours of New Year’s Day, and that he drew and fired his pistol by mistake. However, different people could have very different interpretations of what happened. To a juror suspicious of the police or with first-hand experience with racial discrimination, this defense might seem unpersuasive. The video would then appear to be a police execution of a helpless suspect. To another juror, perhaps one sympathetic to the demands of police work, the video could seem to be a terrible mistake made in a moment of extreme stress. Jurors in this case clearly thought the latter was the more persuasive story.

Both the Blagojevich and Mehserle cases, and many more like them, consistently demonstrate that the facts of a case, even powerful video and audio evidence, do not speak for themselves. Attorneys must always place the evidence in context and should remember that the same evidence may have a very different meaning for different jurors.

07/26/2010

At a recent Continuing Legal Education seminar on trial strategy, I was asked a question I’ve heard several times in the past. The attorney wanted to know what tips I could offer for getting jurors to like the trial attorneys.

In mock trials and post-trial juror interviews, jurors consistently praise the same attorney characteristics. For example, jurors tend to appreciate brevity in the attorney’s presentations, professionalism and a calm demeanor in court, and clarity of purpose in the attorney’s questioning of the witnesses. In other words, jurors usually like attorneys who get to the point quickly and clearly and with a minimum of drama. On the other hand, jurors are often critical of attorneys who are overly-aggressive or emotional during their cross-examination of the witnesses, attorneys who are too repetitive or long-winded, and attorneys whose presentations seem irrelevant or that are not clearly linked to the case story that the attorney is trying to tell.

However, the question about how to get jurors to like attorneys is also slightly misguided. The primary goal in court is not to get jurors to like you; the goal is to get jurors to agree with you. And we have found that jurors do not necessary agree with the attorneys they like, but they almost always like the attorneys they agree with. So if attorneys really want jurors to like them, the best way to achieve that is to persuade jurors to agree with them that their side deserves to win and the other side deserves to lose. In other words, getting jurors to like you should be seen as a by-product of persuading jurors that you are right, rather than as a means of persuading them that you are right.

06/03/2010

When people find out that I’m a jury consultant, they often ask for tips on getting out of jury duty. I usually tell them that there a two fairly certain ways of getting out of jury duty, but then I explain why they’d be very fortunate if they got to serve on a jury.

First of all, avoiding jury duty is not hard. While ignoring a jury summons is illegal and I would not advise anyone to break the law, very few venues enforce the laws requiring citizens to return their jury summons. So if you get a summons in the mail and ignore it, chances are you won’t hear anything more about it.

Second, even if you return the summons and are ordered to appear, the chances that you will be selected for a jury are relatively slim, especially if you do not want to serve. If jury service would be a significant personal or economic hardship for you, your business, or your family, the court will almost always excuse you. Simply requesting to be excused, even if you don’t have a significant hardship, is often enough, because no one – not the attorneys and not the court – wants a surly juror on the panel.

But if it’s at all possible for you to serve, I strongly suggest that you do. There are many benefits of serving on a jury, beyond the pride of doing one’s civic duty.

As part of my work, I have the opportunity to talk to many jurors after trial and almost unanimously, jurors report that their experiences were interesting and rewarding. The civil cases that go to a jury trial are often the most closely contested disputes, with evidence supporting both sides’ claims. Complex cases may also involve evidence and expert testimony from fields you know nothing about, so jurors often get crash courses from noted experts in areas such as engineering, chemistry, physics and economics. Most people find learning and interpreting this complex evidence to be a fun and challenging experience.

Jurors also report that witnessing the inner workings of the justice system (and democracy more generally) is a positive and empowering experience. Many people vote in elections, so a single vote in an election counts for very little. By comparison, each vote on a standard jury is one-twelfth of the total, and even more in venues that have smaller juries. So every juror has a considerable say over the outcome of a case that may determine the distribution of millions of dollars or the future of someone’s life. In other words, jury duty is an opportunity to sit in a position of power and responsibility that does not come along every day. As a result, jury service often changes the way people see not only our system of government, but also themselves. The nineteenth-century historian Alexis de Tocqueville wrote about our jury system and what jury service does for those who serve. He noted that by asking citizens to decide matters beyond their day-to-day routines, jury service “rubs off that private selfishness which is the rust of society.”

It’s good to rub that “rust” off every now and then, and to do something outside the norm. Serving on a jury asks you to absorb new information, to think, to deliberate and to make decisions outside your daily routine. In the jury you'll meet new and interesting people who, despite their differences, share a common desire to do the right thing and to reach a just decision.

So the next time a jury summons arrives in the mail, return it, and if called, appear. If you’re lucky enough to serve, you won’t be sorry you did.

03/12/2010

Toyota’s troubles with defective accelerator pedals have attracted a great deal of media attention. While the idea of cars racing wildly out of control makes for dramatic imagery, sudden acceleration is an extremely rare event. Only a handful of lawsuits have alleged that Toyota’s accelerator problems led to an accident. While these lawsuits are certainly serious, they are similar to the cases all major automakers face on a regular basis. Toyota’s much bigger legal challenge will come from “diminution in value” class action lawsuits.

Diminution in value claims against Toyota will probably go something like this:

• The bad publicity surrounding Toyotas has hurt public confidence in the Toyota brand.

• Therefore, demand for Toyotas, both used and new, will go down.

• Lower demand for used Toyotas means lower prices, so current owners will not get as much for their used cars if they choose to sell them or trade them in for a different car.

• Plaintiffs will therefore claim that Toyota owes them money for the difference between what the vehicle was worth before the accelerator controversy and what it is worth now.

At first blush, a diminution in value claim doesn’t sound that bad. So what if the value of a car went down a few hundred dollars? Toyota can certainly afford that. But the problem comes when you multiply a few hundred dollars by the 5.3 million vehicles involved in the U.S. recall or by the many more millions of Toyotas on the road in this country today. With class action diminution in value lawsuits pending in multiple venues, these lawsuits can snowball into “bet the company” litigation.

While Toyota has a difficult legal road ahead, diminution in value claims present significant challenges for the plaintiffs. For example, it can be very difficult for the plaintiffs to show that a drop in the value of a used car is attributable to something as nebulous as negative publicity. The value of almost all used cars decreases steadily over time, even without questions concerning vehicle safety. Used car values also depend on a myriad of factors, including vehicle condition and mileage, as well as the negotiating skills of the seller and the buyer. As a result, it is very difficult to establish a “true” dollar value for any used car at any given time, and even more difficult to attribute any changes in that value to a single outside influence. As a result, the defense can often challenge the plaintiffs’ damages theory, which is the very heart of diminution in value claims.

02/24/2010

This week, the Supreme Court handed down a per curium opinion in the case of Thaler v. Haynes. Thaler is the latest in a string of decisions concerning limits on the use of peremptory challenges during jury selection. The first of these decisions was Batson v. Kentucky (1986) which sought to eliminate the use of race-based peremptory challenges. Under Batson, an attorney can no longer strike racial minorities from the jury unless the attorney can provide a “race neutral” explanation for the strike.

Among the many criticisms of Batson are that it is vague and difficult to enforce. Indeed, over the last fifteen years, all of the Batson rulings have been clarifications of the procedures to be used during Batson hearings, including what constitutes a discriminatory peremptory challenge and how lower courts should identify acceptable, race-neutral explanations for challenged strikes. The Thaler decision continues this clarification project.

Thaler v. Haynes stems from the trial of Anthony Haynes, who was tried and convicted of murdering a police officer in Texas. Two judges presided over the jury selection for Haynes’ trial. The first judge heard the voir dire questioning of the jurors, but another judge presided over the attorneys’ use of their peremptory challenges. The defense objected to the prosecutor’s peremptory strike of an African-American juror, citing Batson. During the subsequent Batson hearing, the prosecutor, who was required to provide a race-neutral explanation for the strike, claimed that the juror’s demeanor seemed “somewhat humorous” and “not serious.” The judge, who was not present during the juror's questioning and who had not seen the juror’s demeanor, accepted the prosecutor’s explanation as “race neutral” and overruled the defendant’s Batson objection. Haynes was convicted, but on appeal, a federal Appeals Court granted Haynes a new trial. However, the Supreme Court reversed that decision, ruling that a trial judge need not personally observe a juror’s demeanor in order to rule on a demeanor-based explanation for a challenged peremptory strike.

While Thaler may seem to be a relatively minor technical decision, it may have important consequences for attorneys and trial consultants. First, Thaler reverses a recent trend toward restricting the scope of acceptable race-neutral explanations for challenged peremptories. Snyder v. Louisiana (2008) rejected speculative juror hardship as an acceptable race-neutral explanation, and Miller-El v. Dretke (2005) rejected explanations for challenged strikes if the explanation also applied to jurors who were not struck. Second, Thaler could be seen as sanctioning the expanded use of demeanor-based explanations for challenged strikes. Juror demeanor includes an extremely wide range of actions and statements, potentially giving attorneys greater flexibility in the use of their peremptory challenges.

02/01/2010

Defense attorneys are understandably interested in strategies for minimizing damages awards. Jeri Kagel recently wrote a good article on defense strategies for addressing plaintiffs’ damages claims. Kagel points out that any damages strategy will depend a great deal on the specifics of the case, but also makes several good points about how best to address this sensitive topic. In short, defense attorneys should not shy away from talking to the jury directly and confidently about damages.

Defense attorneys have legitimate concerns about arguing over damages. If done incorrectly, disputing the plaintiff’s dollar requests can make the defense seem insensitive, or may give the jury the mistaken impression that the defense has admitted liability. However, there are ways to argue damages that may not only lessen any damages award, but may also help the defense win on liability.

For most jurors, there is a fuzzy line between liability and damages. Jurors usually don’t compartmentalize the two parts of a case as cleanly as attorneys and judges. While jurors understand that to award damages to the plaintiff, the jury must first find the defendant liable, arguments made about liability will naturally affect the jurors’ views on damages. Similarly, arguments concerning damages can affect jurors’ views on liability. Most importantly, this interplay between liability and damages need not be a disadvantage for the defense.

For example, most jurors come to court with some suspicion of a plaintiff’s claims. Many jurors believe that the amounts awarded by juries tend to be excessive, that there are too many lawsuits filed these days, that people are too eager to sue, and that frivolous lawsuits are an unfair burden to businesses that have done nothing wrong.

To key into these prevalent attitudes, the defense can present its own damages witnesses to counter the claims made by the plaintiff. For example, a Life Care Plan prepared by an injured plaintiff’s damages experts to describe the losses and future needs of the plaintiff can be countered with a less expensive Life Care Plan that still meets all of the plaintiff’s needs. Medical and economic witnesses for the defense can explain why the plaintiff’s figures are overblown or why certain expenses are unnecessary. If done properly, jurors are likely to see these damages arguments as a debate between competing experts over technical issues, rather than as a wealthy defendant trying to avoid making payment to an injured victim.

Jurors also know that the plaintiff has an interest in inflating the damages request. Confirming that suspicion with effective damages witnesses for the defense can challenge the plaintiff’s credibility not only on damages, but also on liability. For jurors, a plaintiff who fudges the numbers on damages may also be willing to exaggerate the strength of their core liability arguments.

01/13/2010

Time Magazine and several blogs have recently written about the problem of jurors doing Internet research on the trials they have been charged to decide. Jurors’ Internet research, as well as their writings on blogs and social networking websites, has led to several so-called "Google mistrials". As a result, courts across the country are looking for new ways to prevent jurors from improperly using information technology.

The most common response to this problem has been to include new jury instructions at the beginning of the trial. Wisconsin is among several states that have adopted jury instructions that specifically warn jurors not to do Internet research on the case and not to communicate with anyone about the trial via e-mail, text, blog, Twitter, or social networking website.

But few commentators have focused on why jurors seek additional information outside the courtroom or why they feel compelled to communicate with others about the case. Once selected, most jurors are motivated first and foremost by a desire to reach a just and fair verdict. Jurors are well aware of the weighty responsibility before them, and they work hard to understand the evidence and the court’s instructions. But when jurors feel that the evidence is incomplete or their instructions are unclear, jurors may choose to overlook the court’s instructions in order to fulfill their primary duty of reaching a well-informed decision.

In short, jurors do research outside the courtroom because they don’t feel like they receive enough information inside the courtroom. Almost all of the media reports of jurors’ Internet research mis-steps are related to the need for clarification or additional information about an important aspect of a case. So in addition to addressing the symptoms of jurors’ need for additional information (such as new jury instructions) other steps should address the root cause of the problem: incomplete information. Some states have implemented reforms along these lines, such as allowing jurors to ask questions of witnesses. Other proposals include allowing jurors to discuss the case with each other during recesses in the trial. In addition, litigants should endeavor to present juries with complete and satisfying stories that clearly and succinctly explain not only what happened, but also why their side deserves to win.